Copyright lobby demands rollback of recent Canadian reforms in secretive trade deal
Published on Sunday September 23, 2012 By Michael Geist Internet Law Columnist
More than ten years of contentious debate over Canadian copyright law appeared to come to a conclusion in late June when Bill C-11 passed its final legislative hurdle and received royal assent.
Yet despite characterizing the bill as a “vital building block,” the copyright lobby that pressured the government to impose restrictive rules on digital locks and tougher penalties for copyright infringement is already demanding further reforms that include rolling back many key aspects of the original bill.
Unlike the last round of copyright reform that featured national consultations and open committee hearings, this time the lobby groups are hoping to use secretive trade negotiations to forge legislative change. Later this week, the International Intellectual Property Alliance, an umbrella organization that represents movie, music, and software associations, will urge the U.S. government to pressure Canada to enact further reforms as part of the Trans Pacific Partnership trade negotiations.
The IIPA, which recently submitted its position on Canada’s entry to the TPP as part of a U.S. regulatory process, takes particular issue with the role of Internet providers in enforcing Canadian copyright law. The Canadian “notice-and-notice” approach, which requires providers to forward thousands of infringement allegation notices to their subscribers, strikes a balance between effective enforcement and free speech, while preserving users’ privacy.
The model has begun to attract global attention with countries such as Chile adopting it within its own domestic law. The IIPA sharply criticizes the approach, however, calling for dramatic reforms. It argues that Canadian law “fails to provide meaningful incentives for network service providers to co-operate with copyright owners to deal with copyright infringements that take place in the digital network environment.”
Instead, the copyright lobby wants Canada to implement measures that would require Internet providers “to take action to prevent recidivists from repeatedly using their services to commit copyright infringement.” The plain language demand: a termination system that would cut off Internet access for subscribers accused of infringement.
The IIPA also wants Canada to undo statutory damages changes from Bill C-11 that created a liability cap of $5,000 for non-commercial infringement. It claims that the non-commercial cap renders statutory damages “ineffective in achieving its goals of full compensation and deterrence in the online environment.”
Even with the change, Canada remains one of the only developed countries with statutory damages that create the prospect of multi-million dollar damage awards for commercial infringement. The government created the non-commercial cap because it was uncomfortable with rules that could spur thousands of lawsuits against individuals.
Bill C-11’s new consumer-focused provisions, which include exceptions for non-commercial user generated content and educational uses, also come in for criticism. Despite repeated assurances by Canadian officials that the law is compliant with international standards, the group warns against the exceptions by urging the U.S. government to remain “vigilant against any effort by Canada…to weaken or relax the 3-step test.”
On top of the criticisms of the newly enacted copyright reforms, the IIPA also wants the U.S. government to use the TPP to force Canada to enact a long list of additional changes to the law. These include extending the term of copyright, providing new powers to Canadian border guards to inspect shipments without court oversight, and introducing new criminal penalties for copyright and trademark violations.
For years, critics have warned that caving to U.S. copyright lobbying would only invite more demands in an endless cycle of unfounded claims of “weak” Canadian copyright accompanied by pressure for further domestic reforms. Even the most cynical, however, might not have predicted that a new round of demands would surface before the ink was dry on Bill C-11.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at www.michaelgeist.ca.